Anne LaForest
Dean, Faculty of Law, UNB

Well, as Professor Kuttner has said the Supreme Court majority judgement was in fact written by my father and I thought when he asked me to speak on this topic that it would somehow look very badly if I began to disagree with him. So I won't be doing that I will be doing something that is a little more of a paradigm shift. Charles has said that I am going to speak about the degree of protection to students in the multicultural classroom, and really in a larger sense what are the limits upon freedom of expression as presented by this case. By way of introduction I will tell you that my background is really more in international law then it is the purely domestic constitutional law sense, and when I read freedom of expression cases I read very much from that perspective. I might say similarly that when I read freedom of expression cases I come from a background that involved a fair degree of women's studies and feminist perspectives on freedom of expression. So what I really want to talk about today is to put it in a context, to put the Malcolm Ross case in a context that looks at the historical perspective of rights - what is meant by rights between individuals and the state for example, and to look at the Supreme Court of Canada decision against that background, because what I hope you get out of my remarks is the sense that ultimately the Supreme Court of Canada decision in this case is a good one. But I think within a larger sort of vision of what the future of rights language must be in this country, I think it is fairly narrow and I hope you will be able to see that. So I am trying to bring out the positive aspects of the case and where I think the case may improve.

The way that I am going to start of with that is to make a very important factual statement about the Malcolm Ross case from the point of view of freedom of expression. That is, you have to start of with reviewing freedom of expression in this case, by recognizing that the Court accepted the findings of fact of the New Brunswick tribunal decision. These were effectively that Malcolm Ross's off-duty conduct was such that it poisoned the environment of the classroom where Jewish students were forced to face racist statements outside the class, in a sense in that their interests were not protected to the same degree as was the case for other individuals. In other words, his activity was accepted by the Supreme Court as being contrary to section 5 of the New Brunswick Human Rights Act. That is an important fact that I am going to come back to when I talk about the historical conduct of this case. So that all the Supreme Court of Canada was doing from my point of view, in terms of freedom of expression, they were trying to determine whether or not the order of the tribunal - which effectively suggest that this type of freedom of expression needed to be restrained - was constitutionally valid. Was it possible for the New Brunswick tribunal to say to Malcolm Ross "you may no longer speak in this manner, in certain ways" because it is inconsistent with the constitution of Canada.

So I begin with a couple of comments which I would call sort of an historical vision of rights. And I really just want to make three points under this heading. The first of these points is that when I think about rights I think about rights in the context of a comparative international vision of those rights which says that the Charter is a type of document that has an existence of a very long history; that we have had documents of this kind since 1789 in the form of the French declaration and we have had this type of Bill of Rights declaration in the United States constitution. Canada is much more recent in this type of document. But the notion of rights documents of the Western kind as they are often referred to when we speak of the Charter, are a type of rights document that refers to the rights of the individual against the state. To put it very shortly, there are certain things that the state can not do in terms of interfering with an individual's rights, that certain rights are in effect, inalienable. What I would suggest of that is that if you look at the judgement and international history of rights that has developed since that earlier sort of conception of rights being the individual against the state, what you come to, particularly in the post World War II era is increasing recognition that rights are also collective in nature. That they are not simply the rights of an individual against the state but that they include such things as the right to an education, the right to a certain social standard of living. Professor Kuttner mentioned the Universal Declaration of Human Rights. As part of that whole international sort of development of rights, there are other documents that are important - and one of those is the International Covenant on Civil and Political Rights. But there is also another important document to which Canada is a party called the International Covenant on Economic, Social and Cultural Rights. In this document you see a much more collective sense of rights of a social and cultural nature, example the right to an education; the right to a certain standard of living. And I would even go so far to say that in the recent period of the Charter we are increasingly seeing a need for a collective view of rights, as for example in the case of the Aboriginal peoples. My point in all of this is to say that the focus on the Charter analysis, in particularly this case, is one that looks at the right of an individual, Malcolm Ross as against the state, and that is how the case proceeds in terms of measuring rights. But it is important that you recognize that there is also a vision of rights that see society in a much more collective way and that measures the rights of individuals, vis-a-vis one another.

The second point I wanted to make under this historical context is the notion of the right of freedom of expression. There is a very clear statement in the Ross case to the effect that in reference to section 2(b) of the Charter, which protects the right of freedom of expression, you have the court saying: "It is difficult to imagine a right guaranteed that is more important to a democratic society". So that the sense you are left with by the Court is that freedom of expression is something that we consider to be at the height of what is important to a democratic society. While not disagreeing with that, I would hasten to point out that equality rights are increasingly important. If you look at this historical period that I am referring to again, the notion with freedom of expression has always been tied up with the "core vales" of pursuing truth; of pursuing self fulfilment; of pursuing political and social participation. The equality rights notion that we have come to be familiar with today in the form of section 15 of the Charter has had a somewhat more rocky history. So for example, when you look at the United States context the Bill of Rights in that country did provide that all individuals are created equal, but it was also very clearly stated by the US Supreme Court in the 1950s that this was not to extend to persons who were not "white". In other words, that black persons were not entitled to the same protections. In fact, ironically, it was not until the 1950s in a case called Brown v. Board of Education that there was a recognition that in the education context that racial equality did not need separate but equal, but that equality needed something more than that.

Professor Kuttner spoke of the atrocities of the Second World War and it was from those atrocities that many of these declarations and international documents came forth, and those were very much concerned with equality rights of citizens. For example, in the United Nations Charter you have right at the outset of that document that we do not want the scourge of war or the violations of the Second World War which arise out of the unequal treatment of citizens in the states of the nations of the world. So that I point out that section 15 has developed in a way that has a somewhat more rocky history so to speak.

And the third point I wanted to make, and that follows directly from that, is that our Canadian Charter of Rights comes from that history. For what happened shortly after many of these documents of the international format that I discussed were developed, we developed something called the Canadian Bill of Rights in 1961, which was a statute put forward by the then Diefenbaker government. The shortcoming of this document, and in my opinion the shortcoming of many human rights act which then flowed from that, is that it was a statute. So in the 1970s you had many decisions that were seen as being giving rights to great inequality by the Supreme Court under that particular document. And it was because of these decisions in relation to women and Aboriginal peoples that the section 15 Charter provisions was drafted in the way it was. It was drafted with a view that equality requires something more than simply the "sameness" of treatment, which is in effect much of what had been coming from the Supreme Court of Canada prior to this period.

Now when I take that whole context for you and simply jump to the microcosmic decision of Malcolm Ross, I think it does not take a lot of thought to suggest that what was occurring in the Malcolm Ross case, anti-semitic statements in an educational context in a way that deprived the equality rights, in my view, of David Attis's child and other Jewish children in that classroom should, without there being any law about it or having a strict legal analysis, immediately draw you to the conclusion that the Supreme Court of Canada was right. It was right in the context of all that I have discussed about rights and the way that the rights of persons arise in the state. What I see as the shortcoming of the decision is not so much in the form of result, for result is really a secondary sort of feature of what we do in terms of analysis, it is more at the level of what in fact are the rights that come out of that case. And I guess what I wanted to say and I am going to try and shorten it a bit or I will otherwise go on at great length.

I want to reiterate what Professor Kuttner pointed out was the actual process of the Supreme Court in Canada engaged in this case, because you have to understand that judgements are written in the context of the approach that the Court has adopted in other Charter cases. Here the Court essentially had a two step process: the first step is has section 2(b) of the Charter been infringed. Or when Malcolm Ross made these statements was there an infringement of his freedom of expression? Now the approach that the Supreme Court of Canada has taken to that question in the cases mentioned by Professor Kuttner, is to say that we as a court are not going to measure freedom of expression against other rights when we look at whether or not there has been an infringement of section 2(b). We are simply going to say as long as this conveys meaning and as long as the order of the New Brunswick Tribunal was to restrict that conveyance of meaning, then in effect there is a breach of section 2(b), and we turn to a question of whether or not that limitation is justified. That is essentially what the court does in this case. They do not look at the core values of what is meant by freedom of expression. They looked at Web of Deceit and other materials provided by Malcolm Ross and said they convey meaning, they are not violent in their nature and therefore must be protected under section 2(b) because as I have said it is difficult to imagine a right more fundamental to a democratic society. The Court suggests that any balancing, any consideration of other rights must take place within the context of section 1. And so they turned to that.

Section 1 is the provision in the Charter which allows a limitation upon rights when they are in accordance with a free and democratic society. And what does the Court say about that in general is that you must weigh adequately the rights of society as a whole as against Malcolm Ross's right to freedom of expression. And the nature of section 1 analysis, from all sorts of decisions again that relate to that particular provision and therefore also includes the Oakes decision, suggest that in general what you have to establish is that there is a relationship between what the state act is doing and the limit on the right. There has to be a limit, and not only that it has to be one that minimally impairs this very broad freedom of expression right that has been extended to Malcolm Ross. So the Court looks at this and then suggests that we look at the minimal impairment - we must look at the weighing of broad societal factors. The Court states that: "Ultimately, any attempt to determine whether the order of the New Brunswick Tribunal is a justifiable infringement on the respondents freedom of expression must involve a weighing of essential values and principles, mainly the accommodation of a wide variety of beliefs on the hand and respect for culture and group identity, and faith in social institutions that enhance the participation of individuals and respect for the inherent dignity of the human person". And as Professor Kuttner pointed out the Court then looked in that regard at a number of things. It looked at the educational context, it specifically referred to the case of Brown v. The Board of Education, it looked at the vulnerability of young children within the classroom; it looked at the position of public trust of a teacher vis-a-vis students; it also looked at the anti-semitism context, at the history of atrocities, at the history of discrimination against Jewish people; and it looked at the hate propaganda provisions of the Criminal Code. They ultimately found that there was a fundamental reason for a limit against Malcolm Ross but when it got the minimal impairment portion it suggested that the order stating that he be terminated if he continue to express himself in the manner that he had been, that was taken away on the basis that that was not a minimal impairment.

So now I have given you a very broad context and a very narrow view of what the case actually decided. What I wanted to sort of talk about in a general way, and I put this forward merely at a level of possibilities of suggestions, and largely because I have not analyzed these to the point that I am not sure what my position on it is. What I have entitled this section is What Has Been Lost? I think that it is fair to say that the approach of the court is one that leaves competing rights entirely to the section 1 analysis, entirely to the question of whether or not a right should be limited. The way that court has abstracted the question of whether or not a right has been infringed and then whether or not it should be limited under section 1, seems to me loses sight of other rights which may be at issue. What I mean by this in particular is that I started of this whole discussion by saying that the court accepted the finding that the off-duty conduct of Malcolm Ross such as to poison the educational environment of students within his classroom, particularly for Jewish students. Section 15 provides that there is to be equality for all persons. This received a fairly limited treatment by the Court.

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